Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA309722
`ESTTA Tracking number:
`10/05/2009
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91191669
`Defendant
`Vital Pharmaceuticals, Inc.
`Kalina Pagano
`Vital Pharmaceuticals, Inc.
`15751 SW 41st Street, #300
`Davie, FL 33331
`
`Proceeding
`Party
`
`Correspondence
`Address
`
`Submission
`Filer's Name
`Filer's e-mail
`Signature
`Date
`Attachments
`
`kpagano@vpxsports.com
`Motion to Suspend for Civil Action
`Kalina Pagano
`kpagano@vpxsports.com
`/kp/
`10/05/2009
`Motion To Suspend Proceeding 91191669.pdf ( 21 pages )(3192895 bytes )
`
`

`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`INNOVATIVE VENTURES, LLC
`
`Opposer
`
`Applicant
`
`VITAL PHARMACEUTICALS, INC.
`
`v
`
`Opposition No. 91191669
`Serial No. 77495536
`
`MOTION TO SUSPEND PROCEEDINGS PENDING OUTCOME OF OPPOSER'S CIVIL ACTION
`
`Pursuant
`
`to 37 C.F.R. §2.117(a) and TEMP §510.D2(a), VITAL PHARMACEUTICALS,
`
`INC.
`
`(hereinafter "VPX”}, hereby moves the Trademark Trial and Appeal Board to suspend this opposition
`
`proceeding, pending the outcome of the civil action: Hansen Beverage Company v. innovative Ventures,
`
`LLC. d/b/o Living Essentiois, Case No. 08-CV-01166 (1EG) in the U.S. District Court, Southern District of
`
`California, Sacramento Division, filed on July 1, 2008 (hereinafter "5 Hour California Action") and states
`
`as follows:
`
`On or about June 10, 2008, VPX filed an intent-to-use trademark application for “energy drinks;
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`isotonic drinks; sports drinks” in international Class 32. The United States Patent and Trademark Office
`
`(hereinafter "USPTO”) subsequently assigned Serial Number 77/495, 536 and the mark was noticed for
`
`publication on April 28, 2009.
`
`Opposer, INNOVATIVE VENTURES, LLC (hereinafter " IVLLC") was granted an extension, up to
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`and including August 26, 2009, in which to oppose VPX’s "7 Hour Down” mark (Serial Number 77/495,
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`536), based upon the April 28, 2008 Notice Of Publication.
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`VPX’s Answer to the Opposition is due October 5, 2009. However, VPX contends that the
`
`opposition proceeding should be suspended, based upon the allegations set forth in the Complaint for
`
`

`
`the 5 Hour California Action. A copy of the complaint in the 5 Hour California Action is attached hereto
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`as Exhibit "A.”
`
`VPX contends further that the disposition of the 5 Hour California Action will have a bearing on
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`the validity of the 5 Hour Mark, as it pertains to this instant proceeding. As such, VPX prays that the
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`Board enters an order granting the relief sought in this motion, suspending this proceeding, and for any
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`further relief deemed proper.
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`In addition, VPX hereby moves the Board for preservation of
`
`its rights, to file and serve its
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`Answer to the Opposition, if this instant Motion is denied.
`
`Date: October 5, 2008
`(Filed electronically via USPTO.ES'l'|’A)
`
`Respectfully submitted,
`
`Katina Pagano, E uire
`
`Attorney for Appll ant
`Vital Pharmaceuticals, Inc.
`
`15757 sw 415‘ Street, #300
`Davie, FL 33331
`
`Telephone: 954-641~0570 ext 293
`Fax: 954-641-0583
`
`Email: kgagano@vpxsports.com
`
`

`
`CERTIFICATE OF SERVICE
`
`I certify that I served:
`
`MOTION TO SUSPEND PROCEEDINGS PENDING OUTCOME OF OPPOSER'S CIVIL ACTION
`
`on October 5, 2008 by:
`
`___
`
`delivering
`
`A
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`mailing (via first class mail}
`
`it
`
`email
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`A copy to:
`
`Anessa Kramer
`
`Brooks Kushman
`
`1000 Town Center, Suite 2200
`
`Southfield, MI 48075
`
`Telephone: 248-358-4400
`Email: akrame-r@brook5kushman.com
`
`immi
`
`
`I-(alina Pagano, Esqu e
`
`

`
`
`
`EXHIBIT “A”EXHIBIT “A”
`
`

`
`A0 I20 (Rev.3f0-4')
`
`TO:
`
`Dil'€Ct0l' 0f the
`
`Mail Stop 8
`Patent and Trademark Ofiice
`P.O. Box 1450
`Mmndm VA 223134450
`
`ACTION REGARDING A PATENT on TRADEMARK
`
`REPORT ON THE
`OR
`
`
`
`7z‘If2008
`
`Southern District of Califomia
`
`DEFENDANT
`
`
`
`PLAINTIFF
`
`In Compliance with 35 U.S.C. {,4 290 andfor I5 U.S.C. § I116 you are hereby advised
`that a court action has been filed in the U.S. District Court San Diego on the following Patents or Trademarks:
`U.S. DISTRICT COURT
`DATE FILED
`DOCKET NO.
` 08cvl I66 EEG POR
`
`Hansen Beverage Company
`
`
`
`
`
`
`
` 4
`
`5
`
`PATENT OR
`TRADEMARK NO.
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`PATENT OR
`TRADEMARK N0.
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`PATENT OR
`TRADEMARK NO.
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`Innovation Ventures. LLC
`
`I
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`See Attached
`
`
`
`6_T
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`
`
`DATE INCLUDED
`
`INCLUDED BY
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`In the above—entitied case, the Following patent(s}."lrademark(s) have been included:
`
`8 Amendment
`
`I] Answer
`
`[I Cross Bill
`
`D Other Pleading
`
`nJ I
`eeo
`
`TRADEMARK N0.
`
`TRADEMARK N0.
`
`TRADEMARK N0.
`
`n the above—entitIed case, the following decision has been rendered orjudgrnenl issued:
`
`DEC ISION./JUDGMENT
`
` (BY) DEPUTY CLERK
`
`DATE
`
`

`
`NORI|\_:1ANL.|SMITH[SBN106344]
`nsmit @swss aw.com
`EDWARD J. MCINTYRE [SBN 30402]
`emcintyre@swsslaw.com
`ALISON L. PIVONKA [SBN 155977]
`apivonka@sw5slaw.com
`SOLOMON WARD SHDENWURM & SMITH, LLF
`401 B Street, Suite 1200
`San Diego, California 92101
`Telephone: (619) 231-0303
`Facsimile: (619) 231-4755
`
`Attorneys for HANSEN BEVERAGE COMPANY
`
`‘-~~
`'
`03 JUL *1
`.-
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`_
`{III ID:
`
`I
`
`I
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`.
`
`fcL
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`059111 Y
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`.
`
`av;
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`UNITED STATES DISTRICT COURT
`
`SOUTHERN DISTRICT
`
`CALIFORNIA
`
`'
`
`'
`
`'
`
`/
`
`l
`
`hD®‘~lO‘U1-FD-£.a-1!‘-.J—|
`
`10
`
`HANSEN BEVERAGE COMPANY, a
`11
`12 Delaware corporation,
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`CASE NO.’08
`
`1- 1
`
`Plaintiff,
`
`V.
`
`COFIPLAINT FOR FALSE ADVERTISING
`
`IN IOLATION or THE LANHAM ACT,
`CA IFORNIA BUSINESS 8: PROFIESSIONS
`cons §§ 17200 AND 17500 AND TRADE
`LIBEL
`
`INNOVATION VENTURES, LLC dba
`LIVING ESSENTIALS, a Michigan
`corporation,
`
`AND
`
`Defendant.
`DD
`
`JURY TRIAL DEMAND
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`13
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`14
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`15
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`Ifi
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`1 7
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`18
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`19
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`20
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`21
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`22
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`23
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`24
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`25
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`26
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`27
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`28
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`P:U{}42EIU85. I 0:D?565 I 5?
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`COMPLAINT
`CR
`
`
`

`
`I
`
`PREAMBLE
`
`This case involves a seller of energy drinks who, instead of allowing its products to
`
`speak for themselves in the marketplace, resorted to false advertising and trade libel in order
`
`to try to boost its own position and diminish Hansen's. The Lanham Act and California law
`
`provide Hansen with remedies for the false advertising and trade libel that has harmed its
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`commercial interests.
`
`Plaintiffs.
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`PARTIES
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`1.
`
`Hansen Beverage Company is a Delaware corporation, licensed to do business
`
`1 2 3 4 5
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`6 7
`
`8
`
`9
`
`10
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`in California, with its principal place of business in Corona, California.
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`11
`
`12
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`2.
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`Since 1992, Hansen has developed, marketed, sold, and distributed non-
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`alcoholic beverages such as sodas, fruit juices, energy and sports drinks, smoothies,
`
`13
`
`lemonades, and iced teas.
`
`14 Defendant.
`
`15
`
`15
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`3.
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`innovation Ventures, LLC dba Living Essentials is, Hansen is informed and
`
`believes, a Michigan corporation with its principal place of business in Novi, Michigan.
`
`1 7
`
`Living Essentials conducts business in this district.
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`13
`
`4.
`
`Living Essentials commercially advertises and markets in interstate commerce
`
`19
`
`competing energy drinks, each of which it publicly claims and represents, inter alia,
`
`20
`
`produces five hours of energy.
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`21
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`22
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`5.
`
`Because this civil action arises under the Lanham Act, 15 U.S.C. §§ 1051, et
`
`QURISDICTION
`
`23
`
`seq., and specifically 15 U.5.C. § 1125(a)(1l(B), this Court has jurisdiction pursuant to
`
`24
`
`15 U.S.C. § 1121, 28 U.S.C. § 1331 and 28 U.S.C. § 1338(3).
`
`25
`
`6.
`
`This Court also has subject matter jurisdiction pursuant to the provisions of
`
`25
`
`28 U.S.C. § 1332{a}(1) in that it is a civil action between citizens of different states, namely,
`
`27 California and Delaware and Michigan, and the amount in controversy exceeds $75,000,
`
`23
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`exclusive of interest and costs.
`
`P:0{J426[lB5.1IJ:0}'565. I 57
`
`-1-
`COMPLAINT
`
`
`
`

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`1
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`2
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`3
`
`4
`
`5
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`6
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`7
`
`8
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`7.
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`Finally, this Court has subject matter jurisdiction over Hansen's California
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`unfair competition and false advertising claims pursuant to 28 U.S.C. § l338{b), in that these
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`claims are joined with a substantial related claim under the Lanham Act and this Court also
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`has supplemental jurisdiction over the statelaw claims pursuant to 28 U.S.C. § l367(a).
`
`VENUE
`
`8.
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`Venue in this district IS proper pursuant to the provisions of 28 U.S.C. §
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`i39t(b).
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`MATERIAL Al.I.EGATlON5
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`9 Hansen.
`
`10
`
`11
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`9.
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`Hansen's energy drinks have been extremely successful and are sold
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`throughout the United States by more than 100,000 retail stores, including convenience
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`12
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`stores, gas stations, supermarkets, club stores, drug stores and warehouse stores.
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`13
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`14
`
`15
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`10.
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`1 1.
`
`In 1997 Hansen introduced Hansen’s® Energy Drinks.
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`Then, in April 2002, Hansen released the first of its Popular Monster Energy®
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`drinks. The line of Monster Energye’ drinks has since grown to include the Lo-Carb Monster,
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`15 Monster Khaos, Monster Assault, Monster M-80, Monster Heavy Metal, and Monster Mixxd
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`17
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`energy drinks, which also use the Monster and Monster Energi/9 trademarks and similar
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`13
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`trade dresses.
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`19
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`12.
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`In 2004, Hansen introduced Lost‘? Energy" Drinks and Rumba“.
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`In 2005,
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`20 Hansen introduced Joker Mad Energy” drinks, a low-carb version of Lost‘? under the Perfect
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`21
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`10"‘ brand name as well as a new Lost“) Five-O“ energy drink.
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`22
`
`23
`
`13.
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`T4.
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`In 2006 Hansen introduced Ace" Energy drinks and Unbound Energy@drinks.
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`Hansen's energy drinks have achieved significant success in commerce
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`24
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`throughout the United States and are favored energy drinks for millions of customers.
`
`25
`
`Living Essentials.
`
`25
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`15.
`
`Living Essentials’ S—HOUR ENERGY‘? drinks are competing energy-drink
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`27
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`products that Living Essentials markets and sells in interstate commerce throughout the
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`28 United States.
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`P-.DD426D35.I0:0?5Ei5.15?
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`~2-
`COMPLAINT
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`__ __
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`
`
`

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`1
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`2
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`3
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`4
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`5
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`5
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`7
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`3
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`16.
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`Living Essentials advertises its 5-HOUR ENERC‘/“'3 drinks in commercial
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`advertising across the United States.
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`17.
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`Rather than engage in fair competition in the marketplace, however, and allow
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`consumers to exercise their own choice, Living Essentials has resorted to false advertising
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`and trade libel to attempt to promote its 5-HOUR ENERCW drinks and falsely to discourage
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`customers from using or purchasing Hansen's energy drinks.
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`The False Advertising Claims.
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`18.
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`indeed, the name, "5-HOUR ENERGY‘? is, in and of itself, false and
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`9 misleading precisely because it states, or at a minimum implies, that two ounces of a 5-
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`10 HOUR ENERGW drink produces a sustained level of ”energy” for five hours. This is
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`11
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`12
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`13
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`14
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`15
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`16
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`17
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`13
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`19
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`20
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`21
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`22
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`
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`untruthful based on the drinks ingredients and generally accepted principles of
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`biochemistry, pharmacology and physiology.
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`19.
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`One 5-HOUR ENERGY“) commercial states:
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`Why do energy drinks make you crash? One minute you're wired up. The
`next you feel worse than before. The answer is large amounts of sugar and
`caffeine. But with 5—Hour Energy you could sail through your day with no
`jitters or crash.
`It contains 3 Vitamins for energy and amino acids for focus,
`zero sugar and only 8 calories. Drink it in seconds and in minutes you're
`feeling alert and productive and that feeling lasts for hours. 5-Hour Energy.
`Hours of energy now. No crash later. Available at these fine stores.
`
`20.
`
`Living Essentials’ claim that "with 5-HOUR ENERGY‘? you could sail through
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`your day with no jitters or crash" is, based on the drink’s ingredients and generally accepted
`
`principles of biochemistry, pharmacology and physiology, a false and misleading statement
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`of material fact about 5-HOUR ENERGY“).
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`21.
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`Living Essentials’ claim that 5-HOUR ENERGY?’ “contains B Vitamins for
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`energy and amino acids for focus" is, based on the drinks ingredients and generally
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`accepted principles of biochemistry, pharmacology and physiology, false and misleading.
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`22.
`
`Living Essentials’ claim that with 5-HOUR ENERCY5’ one can “drink it in
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`seconds and in minutes you're feeling alert and productive and that feeling lasts for hours"
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`is, based on the drink's ingredients and generally accepted principles of biochemistry,
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`pharmacology and physiology, false and misleading.
`
`P:OlJ42f:O55.‘|0:D?56S.lS?
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`-3-
`COMPLAINT
`
`

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`23.
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`Living Essentials’ claims in this as well as additional advertisements that
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`SHOUR ENERGY” provides "Hours of energy now. No crash later” are, based on the
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`drinks ingredients and generally accepted principles of biochemistry, pharmacology and
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`physiology, false and misleading.
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`24.
`
`Another 5-HOUR ENERGY“? commercial states:
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`Why are energy drinks bad? 12 spoons of sugar, that’s bad. 200 calories, bad.
`C-uarana, tisk, tisk. Good for a short jittery burst, then a dehabilitating crash.
`So don’t drink energy drinks, drink 5-Hour Energy.
`It's not a drink, more like a
`sip. Well with that sip you’ll feel alert and focused for hours, without the
`crash or jitters.
`it has zero sugar, only 4 calories and no guarana. 5-Hour
`Energy. Hours of energy now. No crash later.
`
`25.
`
`Living Essentials’ claim in this as well as additional advertisements that "you'll
`
`feel alert and focused for hours without the crash or jitters” is, based on the drink’s
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`ingredients and generally accepted principles of biochemistry, pharmacology and
`
`1
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`2
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`3
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`4
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`5 6
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`7 8 9
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`10
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`1 1
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`12
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`13
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`physiology, false and misleading.
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`14
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`26.
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`Living Essentials’ claim in this as well as additional advertisements that 5-
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`15 HOUR ENERGY“) provides “Hours of energy now. No crash later” is, based on the drink’s
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`15
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`ingredients and generally accepted principles of biochemistry, pharmacology and
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`17
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`physiology, false and misleading.
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`13
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`19
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`20
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`21
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`22
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`23
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`24
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`2 5
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`26
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`27
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`27.
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`And another advertisement claims:
`
`This is you after an energy drink. Unfortunately, so is this. Why do energy
`drinks make you crash? One minute you’re wired up. The next you feel
`worse than before. The answer is large amounts of sugar and caffeine. That's
`why you should try a new liquid energy shot called 5 Hour Energy. With 5
`Hour Energy, you can leave grogginess behind and sail through your day
`without feeling jitte , tense or, you know. That’s because 5 Hour Energy
`contains a powerful
`lend of B Vitamins for energy and amino acids for focus,
`alertness and better mood. There is zero sugar, about as much caffeine as a
`cup of coffee and only 4 calories. The 2-ounce shot takes just seconds to
`drink and in minutes you're feeling bright, awake and productive and that
`feeling lasts for hours. So if your energy drink makes you crash, switch to 5
`Hour Energy. Hours of energy now, no crash later. Find out if 5 Hour Energy
`is right for you.
`It's available at these fine stores, or for more information go to
`5hourenergy.c0m.
`
`28.
`
`Living Essentials’ claims in this as well as additional advertisements that 5-
`
`23 HOUR ENERGY?’ provides “Hours of energy now. No crash later” are, based on the drink's
`
`P:(}D4260B5.1(}:0}‘56S.l5?
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`-4-
`COMPLAINT
`
`
`
`

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`ingredients and generally accepted principles of biochemistry, pharmacology and
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`physiology, false and misleading
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`29.
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`Living Essentials’ claim in this as well as additional advertisements that "with
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`5—HOUR ENERC‘/‘*3 you can leave grogginess behind and still do your day without feeling
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`jittery and tense or, you know" is, based on the drinl-:’s ingredients and generally accepted
`
`principles of biochemistry, pharmacology and physiology, false and misleading.
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`30.
`
`Living Essentials’ claim in this as well as additional advertisements that "S~
`
`HOUR ENERGY® contains a powerful blend of B Vitamins for energy and amino acids for
`
`focus, alertness and better mood," is, based on the drink’s ingredients and generally
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`accepted principles of biochemistry, pharmacology and physiology, false and misleading.
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`31.
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`in addition, 5-HOUR ENERCW conspicuously makes the following claims on
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`each drink’s container:
`
`0
`I
`
`-
`0
`0
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`"Hours of energy now"
`”No crash later"
`
`"Feel it in minutes 0 Lasts for hours"
`”Sugar free”
`"0 net carbs"
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`32.
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`5—HOUR ENERCW Decaf conspicuously makes the following claims on each
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`I 2 3 4 5
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`6 7 8
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`9
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`10
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`1 1
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`12
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`13
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`14
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`15
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`16
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`1 7
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`clrinlcs container:
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`13
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`19
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`20
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`21
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`22
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`I
`-
`0
`0
`-
`'
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`"Hours of energy now"
`”No crash later"
`"Feel it in minutes ' Lasts for hours”
`"Sugar free”
`"Decaf"
`"Only 4 calories"
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`33.
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`5-HOUR ENERCYE EXTRA STRENGTH conspicuously claims on each drinl<’s
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`23
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`container:
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`24
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`25
`
`25
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`27
`
`23
`
`0
`-
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`"Sugar free"
`"Only 4 calories"
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`34.
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`Living Essentials’ claims in the quoted advertisements and/or on the product
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`containers that 5-HOUR ENERCW products provide "hours of energy now," or "sail through
`
`your day with no jitters or crash," or "in minutes you're feeing alert and productive and that
`
`P:tJu-:2boa5_Io:o756s.is7
`
`-5-
`COlv‘lPLAlNT
`
`
`
`

`
`
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`feeling lasts for hours 5—Hour Energy,” or "Hours of energy now. No crash later,” or “Feel it
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`in minutes lasts for hours" are, based on 5—HOUR ENERCW’s ingredients, at least as
`
`disclosed on the applicable product container labels, false and misleading based on
`
`generally accepted principles of biochemistry, pharmacology and physiology and cannot
`
`and do not produce the effects claimed.
`
`35.
`
`Living Essentials’ claims in advertisements that its 5-HOUR ENERGY‘? products
`
`1 2 3 4 5
`
`5
`
`7 make the drinker “feel alert and focused for hours, without the crash or jitters” are, based on
`
`3
`
`9
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`the products’ ingredients, at least as disclosed on the applicable product container labels,
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`false and misleading, given generally accepted principles of biochemistry, pharmacology
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`10
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`and physiology, and do not and cannot produce the effects claimed.
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`11
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`12
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`13
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`14
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`15
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`15
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`36.
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`5-HOUR ENERCW Decaf’s ingredients, at least as disclosed—"sugar free,"
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`”Decaf,” "6 mg. of caffeine,” "only 4 calories"—given generally accepted principles of
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`biochemistry, pharmacology and physiology, do not and cannot provide "Hours of energy
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`now,” ”Feel it in minutes 0 Lasts for hours,” “No crash later," as Living Essentials claims.
`
`Those claims are further false and misleading based on the products’ ingredients including,
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`in particular, the limited amount of caffeine and sugar in the products, at least as disclosed
`
`17
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`on the applicable container labels.
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`13
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`19
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`37.
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`5-HOUR ENERCW’ Extra Strength’s claims, described in paragraphs 18-30 and
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`33 above, including its claim derived from the name of the product itself, are false and
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`20 misleading based on the product's claims to be “sugar free” and "only 4 calories” and the
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`21
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`22
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`23
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`24
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`25
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`26
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`product's other ingredients at least as disclosed on the applicable container labels, given
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`generally accepted principles of biochemistry, pharmacology and physiology.
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`The Trade Libel.
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`38.
`
`Living Essentials’ statements that energy drinks contain “12 spoons of sugar,
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`that's bad. 200 calories, bad. Guarana, tisk, tisk.” falsely disparages energy drinks in
`
`general that contain some or all the ingredients to which Living Essentials refers, because
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`27
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`such statements falsely impute adverse characteristics to and consequences of such
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`23
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`ingredients. Such statements constitute a trade libel of and/or against energy drinks in
`
`P:o04250ss.1o:o7sss.1s:«’
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`-6-
`COMPLAINT
`
`
`
`

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`general, including Hansen's energy drinks which fall within the class ofdrinks known as
`
`energy drinks.
`
`39.
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`Living Essentials’ statements that energy drinks are "good for short jittery
`
`bursts, then a dehabilitating crash" are false and misleading statements, and by clear
`
`reference and/or inference falsely, disparage energy drinks in general, including Hansen's
`
`energy drinks which fall within the class ofdrinks known as energy drinks.
`
`40.
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`Living Essentials’ statement “why do energy drinks make you crash” is false
`
`and misleading and constitutes trade libel in that by clear reference andfor by inference it
`
`falsely disparages energy drinks in general, including Hansen’s energy drinks which fall
`
`within the class of drinks known as energy drinks.
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`41.
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`Living Essentials’ statements, "One minute you're wired up. The next you feel
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`worse than before” are false and misleading and constitute trade libel in that, by clear
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`reference andfor by inference they falsely disparage energy drinks in general, including
`
`Hansen’s energy drinks which fall within a class of drinks known as energy drinks. Such
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`statements suggest that energy drinks in general, including Hansen’s energy drinks, contain
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`large amounts of sugar and caffeine which produce results that 5~HOUR ENERCYW drinks do
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`not despite the fact that 5~HOUR ENERCW’ _drinks contain even higher levels of caffeine
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`than Hansen’s energy drinks. Such claims about Hansen’s energy drinks are in any event
`
`false and misleading.
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`42.
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`Living Essentials’ statement, "the answer is large amounts of sugar and
`
`caffeine” is false and misleading and constitutes trade libel in that it falsely disparages energy
`
`22
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`drinks in general, including Hansen's energy drinks which fall within the class of drinks
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`23
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`known as energy drinks.
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`25
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`27
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`43.
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`Living Essentials’ statement that "with 5-HOUR ENERGY‘? you can leave
`
`grogginess behind and still do your day without feeling jittery and tense or, you know” is
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`false and misleading and constitutes trade libel in that it falsely disparages energy drinks in
`
`general, including Hansen‘s energy drinks which fall under the claim ofdrinks known as
`
`energy drinks.
`
`P:0(}426DB5.10:Cl?565.t57
`
`-7-
`COMPLAINT
`
`
`

`
`
`
`44.
`
`The statements quoted above are false and misleading statements of material
`
`fact about Living Essentials’ own products and also, by clear inference, about Hansen's
`
`energy drinks, such that they are likely to influence the purchasing decisions of a substantial
`
`number of reasonable consumers and actually deceive or have the tendency to deceive a
`
`substantial segment of the reasonable consumer audience.
`
`45.
`
`All such statements constitute false advertising that Section 43{a) of the
`
`Lanham Act, 15 U.S.C- § 112S(a), and also California's unfair competition law, Business 8:
`
`Professions Code §§ 17200 and 17500, prohibit.
`
`46. Worse, the effect such advertising has, and will have, on reasonable
`
`consumers makes Living Essentials’ false claims about itself and its false statements about
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`Hansen energy drinks even more pernicious.
`
`FIRST CLAIM FOR RELIEF
`
`FALSE ADVERTlS|NG—-VIOLATION OF 15 U.S.C. § 1125{a)
`
`47.
`
`48.
`
`49.
`
`Hansen incorporates by this reference paragraphs 1 through 46, above.
`
`Hansen sells beverages in interstate commerce throughout the United States.
`
`Living Essentials sells its 5~HOUR ENERCW products in interstate commerce
`
`@‘~lfl"U'l-iliiI.~'lt\J—A
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`28
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`throughout the United States and it competes with Hansen’s energy drinks-
`
`50.
`
`Living Essentials engages in commercial advertising in interstate commerce
`
`across the United States.
`
`51.
`
`Living Essentials’ advertisements contain false and misleading statements of
`
`fact concerning its own product.
`
`52.
`
`In addition, Living Essentials’ advertisements contain false and misleading
`
`statements of fact that the reasonable consumer would readily impute, and/or is likely
`
`readily to impute, to energy drinks in general and to Hansen's energy drinks in particular.
`
`53.
`
`Living Essentials’ false and misleading commercial advertising in interstate
`
`commerce violates Section 43la) of the Lanham Act, 15 U.S.C. § 1125{a), in that: it contains
`
`false and misleading statements of fact in commercial advertising about its own products and
`
`about Hansen's products; those representations are material; they are likely to influence the
`
`iv.-oo42aoss.1u:ursss. I5?
`
`-8»
`COMPLAINT
`
`

`
`
`
`purchasing decision of a substantial number of reasonable consumers; those
`
`misrepresentations actually deceive or, at a minimum, have the tendency to deceive a
`
`substantial segment of the reasonable consumer audience; and, Hansen has been injured,
`
`and in the future is likely to continue to be injured, as a result of the misrepresentations,
`both by the direct diversion of sales from Hansen to Living Essentials and by a lessening of
`the goodwill associated with Hansen's products.
`
`54.
`
`As a direct and proximate result, Hansen has suffered injury and harm and will
`
`continue to suffer such harm, including money damages in excess of $75,000, exclusive of
`
`interest and costs, the exact amount of which Hansen will prove at trial.
`
`55.
`
`Hansen is informed and believes that Living Essentials‘ false and misleading
`
`advertising is willful.
`
`56.
`
`Hansen has no adequate remedy at law with respect to Living Essentials’ future
`
`false and misleading commercial advertising precisely because Hansen is informed and
`
`believes that Living Essentials will continue in its same course of conduct unless and until it
`
`has been restrained by an order of this Court.
`
`SECOND CLAIM FOR RELIEF
`
`[FALSE ADVERT|SlNG—CALlFORNlA LAW[
`
`57.
`
`58.
`
`Hansen incorporates by this reference paragraphs 1 through 56, above.
`
`Living Essentials’ conduct, as alleged above, violates the misbranding
`
`provisions of the Federal Food, Drug and Cosmetic Act, 21 USC §§ 343 and 350, which
`
`make the false or misleading labeling of, inter alia, dietary and vitamin supplements
`
`unlawful and illegal.
`
`59.
`
`In addition, Living Essentials’ conduct, as alleged above, violates § 5 of the
`
`Federal Trade Commission Act, 15 U.S.C. § 4S(a)l1), in that it constitutes an unfair method
`
`of competition in or affecting commerce and unfair and deceptive acts and practices in or
`
`affecting commerce.
`
`$‘\l'U'tU1-R-UJINJ-a
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`10
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`11
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`12
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`28
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`60.
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`Living Essentials’ conduct, as alleged above, constitutes false advertising and
`
`unfair competition pursuant to the provisions of Business 8: Professions Code §§ 17200 and
`
`P00425085. lD:0?565. l 5.?
`
`-9-
`COMPLNNT
`
`

`
`61.
`
`As a direct and proximate result, Hansen has suffered injury and harm and will
`
`continue to suffer injury and harm both by the direct diversion of sales from Hansen to
`
`Living Essentials and by a lessening of the goodwill associated with Hansen’s products.
`
`62.
`
`Hansen has no adequate remedy at law with respect to Living Essentials’ future
`
`false and misleading commercial advertising precisely because Hansen is informed and
`
`believes that Living Essentials will continue in its same course of conduct unless and until it
`
`has been restrained by an order of this Court.
`
`THIRD CLAIM FOR RELIEF
`
`ITRADE L|BEl|
`
`63.
`
`64.
`
`Hansen incorporates by this reference paragraphs 1 through 62, above.
`
`By virtue of all of Living Essentials’ false and misleading statements as set forth
`
`
`
`above, and by singling out Hansen’s energy drinks by their well-known ingredients, Living
`
`Essentials’ has engaged in the intentional disparagement of the quality of energy drinks in
`
`general and of Hansen’s energy drinks in particular, resulting in the money damages that
`
`Hansen has suffered.
`
`65.
`
`As a direct and proximate result of all of Living Essentials’ false and misleading
`
`statements as set forth above and also as a direct and proximate result of Living Essentials’
`
`trade libel and intentional disparagement of the quality of energy drinks in general and of
`
`Hansen’s energy drinks in particular, Hansen has suffered money damages in an amount not
`
`presently known, but in excess of $75,000, exclusive of interests and costs, and which will
`
`be proved at trial.
`
`66.
`
`Living Essentials’ conduct constitutes an intentional misrepresentation and
`
`false, defamatory statements, all with the intention of causing injury to Hansen and is
`
`oppressive, fraudulent and malicious conduct as defined in California Civil Code § 3294.
`
`Hansen should recover, in addition to its actual damages, exemplary and punitive damages
`
`according to proof.
`
`WHEREFORE, Hansen Beverage Company prays for relief against Living Essentials as
`
`P:DG42EiUl:l5. I{J:D7565. ‘I5?
`-10-
`COMPLAINT
`
`

`
`follows:
`
`1.
`
`For preliminary and permanent injunctive relief against Living Essentials
`
`pursuant to 15 U.S.C. §§1 116 and 1125(a} and Business & Professions Code-§ 17203;
`
`2.
`
`3.
`
`4.
`
`For an award of money damages;
`
`For the recovery of Living Essentials’ illegal and unjust profits;
`
`For three times Hansen’s actual money damages;
`
`5.
`For a finding that Living Essentials’ conduct constitutes an exceptional case,
`such that Hansen is entitled to its attorneys fees in addition to its costs and expenses of suit;
`
`6.
`
`7.
`
`B.
`
`For disgorgement of Living Essentials’ illegal and unjust profits;
`
`For punitive and exemplary damages; and,
`
`For such other and further relief as this Court deems just and proper.
`
`DATED: July I, 2008
`
`SOLOMON WARD SEIDENWURM 8.: SMITH, LLP
`
`
`
`
`
`B“
`
`EDWARD J. MCINTYRE
`ALISON L. PIVONKA
`Attorneys for Hansen Beverage Company
`
`DEMAND FOR JURY
`
`Hansen Beverage Company demands a jury trial of all claims triable by a jury.
`
`DATED: July 1, 2008
`
`SOLOMON WARD SEIDENWURM 8: SMITH, LLP
`
`
`By:
`ORMAN L. 5
`TH
`
`EDWARD J. MCINTYRE
`ALISON L. PIVONKA
`Attorneys for Hansen Beverage Company
`
`l
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`1
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`2
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`3
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`4
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`5
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`5
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`7
`3
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`9
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`12
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`16
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`26
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`r=;on42soas.io:n:rse.5.isr
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`-1 1-
`COMPLNNT
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` j
`
`

`
`UNITED STATES
`DISTRICT COURT
`5flUTH£RN DISTRICT OF CALIFORNIA
`SAN DIEGO DIVISION
`
`# 152443
`
`— TC
`
`July 01. 2008
`10:11:33
`
`Civ Fil Non~Pri5
`USAU L: UBCV1 I66
`Judge..:
`IRMA E GONZALEZ
`Mmfi;
`Chackt.: BS2088
`
`SEEWCK
`
`Total 1 —>
`
`$350 . OD
`
`FROH: HANSEN BEVERAGE Cl].
`
`W I
`
`INDWTIIINS VENTURES
`
`

`
`. CIVIL COVER SHEET .
`Mi. {Rev 1210?)
`The is 44 civil cover sheet and the infonnaiioii contained herein iic_i:I-icr rcplncc nor supplcincnt the tiling and scnricc oi‘ pleadings or other papcis as required by law. except as
`provided by liicizl ‘rules of court. This fcinfi. approved by the Judicial Confacncc of the United States In September I974, is required for tlii.-. use ofthe Clerk of Court for the
`
`u
`
`
`05¢ i)Il?II:: civil docket shcct. SEE INSTRUCTIONS ON THE REVERSE DFTHE FORM.
`
`
`DEFE IDANTS
`if E
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`INNO ATION VENTURES, LLC dba L~I.VING*..'
`F
`ESSENTIALS, a Michigan corporation
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